Remarks for Robert Burt

The following remarks by Dean Post
were delivered at Professor Burt’s funeral. The remaining Tributes are drawn
from remarks delivered at a memorial service held at the Yale Law School on
November 1, 2015.

I am here today as Dean of the Yale Law School, where Bo has
been an honored member of the faculty since 1976, having previously served on
the faculties of the University of Michigan and the University of Chicago.

I am here, that is to say, in something of a representative
capacity. It is my privilege to offer on behalf of the entire Yale community
our deepest condolences to Linda, to Anne and to Jessica, to Jeffrey, to
Carolyn, to Tessa, Delayna, and Ella. Our broken hearts go out to you in
support and love.

As Dean, it is my particular privilege to express the
affection and the esteem in which Bo was held by his peers and colleagues at
the Law School. This is a subject about which I could say a great deal.

I could, for example, discuss Bo’s exemplary scholarly
originality and courage. Bo is the last true representative of the perspective,
once strong at Yale in the personages of Bo’s mentors Joseph Goldstein and Jay
Katz, of a psychoanalytically informed understanding of persons. Bo was deeply
steeped in psychoanalysis, and he used that perspective to write with wisdom
and subtlety about human interactions in the face of extreme conditions like
death and medical necessity. He also used the insights of psychoanalysis to
form a strikingly original theory about the role of law in public social
ordering.

Bo adopted a paradoxical perspective on law, a perspective
that informed virtually all of his work. Most law professors regard law as a
dispute-settlement mechanism. When there is conflict in society, law intervenes
to provide the just resolution of disagreement. But Bo believed that law should
not be conceived as a mere repository of answers that resolve and settle social
conflicts.

For Bo, social conflict was unavoidable and pervasive; it
ceaselessly derived from psychological needs that always reside in persons.
What mattered to Bo, therefore, was not so much the resolution of conflict but the process
of conflict resolution. He conceptualized law as a method of channeling
conflicts in ways likely to make disputes constructive.

Bo was drawn to those aspects of law that could create pathways
of conflict allowing the full play of human ambivalence and interdependence to
be expressed under conditions of agonistic equality. He learned from
psychoanalysis that only under such conditions could the process of conflict
resolution be truly constructive. Bo also learned from psychoanalysis that
although processes could not end conflict, they could make the relationship
between contending parties more educational, more socially beneficial, and more
likely to achieve a psychologically stable adjustment. That is what mattered
most to Bo.

For Bo law did not merely settle disputes, it enabled
disputes to follow the most beneficial possible paths, with no guarantee that
in the end justice, abstractly considered, would be served. At the very end of
his life, in his wonderful study of the Book
of Job entitled In the Whirlwind: God
and Humanity in Conflict, Bo expressed this point as analogous to the
theological paradox of a God who seeks to command the love of his subjects. Even
an omnipotent God cannot command this, because love that is commanded is not
freely given and therefore not truly love.

Bo regarded the fundamental object of law as the creation of
respect among persons. Bo understood that we would eternally disagree, but he
insisted that we could disagree with respect. Equality of respect, like love,
cannot be commanded. It can only be encouraged, by requiring persons to engage
on equal terms. Such engagement always runs the risks entailed by mutual
acknowledgment. Mutual acknowledgment can end up in mortal antagonism. But Bo
was willing to take such risks, I think, because in his heart he believed in
the goodness of all of us, despite his unrelenting insight into our darker
sides.

The profound influence of Bo’s perspective on the Yale Law
School is obvious in the work of an entire generation of younger public-law
scholars, like Paul Kahn, Jack Balkin, Reva Siegel, Heather Gerken, or myself.
None of us derives our work from psychoanalytic premises, as did Bo, but all of
us, in one way or another, imagine law less as a series of answers than as a
method of channeling conflict.

In my capacity as Dean I could talk to you today about Bo’s
courage as a citizen of Yale Law School, of his leadership in the lawsuit aptly
named Burt v. Rumsfeld, which
challenged the application to YLS of the Solomon Amendment. The Amendment
forced us to allow military recruiters on our campus, recruiters who would not
recognize the rights of our gay students. Bo’s commitment to civil rights,
dating back to the heady days of the 1960s when he clerked for Chief Judge
David Bazelon and later worked on civil rights legislation as a legislative assistant to Senator Joseph D. Tydings, was
always fierce and unyielding.

As Dean, I could talk to you today
about Bo’s astonishing range of expertise that spanned psychiatry,
neuroscience, theology, Jewish history, constitutional law, medical ethics, and
psychoanalysis. More than almost anyone I know, Bo was at home, and, more
importantly, he made home, in many
disciplines. As a Dean, I could also speak of Bo’s ongoing work as a pillar of
the Jewish community in New Haven. The Slifka Center owes a great deal to Bo,
as does our more general understanding of the relationship of Jewish culture to
American law. What other law professor in America would year after year offer a
course on the Book of Job? From this
perspective, Bo was the last figure in a great Yale tradition exemplified by
Robert Cover.

But I confess to you today that I
cannot speak in the voice of a Dean. I haven’t the heart for it; I’m not strong
enough. Bo was a dear friend to me, and I miss him too much. I have known Bo
for a very long time, because I also clerked for Chief Judge Bazelon. And
invariably I found in Bo someone who was utterly honest, empathetic, and open
to all nuances of personal feeling and social interaction. Talking to Bo was
comforting, because I always came away affirmed as a human being, with no part
of me denied, and yet somehow the best parts of me affirmed.

I mourn with my whole being the
loss of Bo’s wisdom, his capacity for connection, and his gentle and but firm
prompts to self-examination and self-recognition, prompts that were always
grounded in mutual personal revelation. To talk with Bo was like drinking water
in a desert. It was nourishing; it was refreshing; it was sweet.

Many years ago, I forget how
many—but at the time I was teaching at Berkeley, not Yale—I was at
a conference with Bo. We somehow ended up in a taxi together coming in from the
airport. In the taxi we were talking about death, and in particular about the
death of Bo’s father. Bo said to me—and I have never forgotten
it—that when his father died he felt he was a soldier in World War I.

You recall that in World War I
soldiers went “over the top” of their trenches in waves that crashed against the
withering and almost invariably lethal fire of the enemy. First one wave, and
then another, and another. Bo said that while his father lived, he had always felt
that there was a wave of soldiers who would be required to go over the top
before him. He was safe, albeit the safety was temporary. But Bo said that when
his father died, he suddenly felt vulnerable, like it was his turn to go over
the top of the trench and into the fields of death.

So now Bo has been called. He has
gone over the top. And it leaves me feeling alone and vulnerable. It leaves me
with a miserable blankness, as though someone had taken down from the wall a
portrait I loved to study. There is nothing in the place of that portrait now—only
cold white plaster, where before I had had a friend in whom I could see
reflected, in soft and compassionate understanding, the complexity of my own
humanity. Death is a thief, and it has stolen my friend.

For this crime, I can offer as
consolation only that we do still retain our own fallen humanity, that we still
have with us Bo’s remarkable texts to help us in the difficult task of
acknowledging the ambiguous fullness of our own humanity, and that we still
have the precious memories of Bo to help us retain faith in the capacity of our
humanity to meet whatever exigencies we must face on this earth. Bo would have
wanted us to hold fast to these hopeful but unyielding consolations.

So goodbye, my friend. We shall do our best to maintain faith
with you.

THIS TRIBUTE IS PART OF A Collection

Robert A. Burt was a member of the Yale Law School Class of 1964, a Note & Comment Editor for Volume 73 of the Yale Law Journal, and a member of the Yale faculty for thirty-nine years. To honor Professor Burt, the Journal is proud to publish this collection of Tributes to his life, career, and legacy. Unless otherwise noted, each Tribute is adapted from remarks delivered at Professor Burt’s memorial service, at the Yale Law School, on November 1, 2015.